FAIR Legislative Update January 3, 2012

ICE Quietly Changes Detention Policies before New Year

Last Thursday, U.S. Immigration and Customs Enforcement (ICE) announced important changes to its detention policies. (ICE Press Release, Dec. 29, 2011; Politico,
Dec. 29, 2011) At the heart of the announcement were two key policy
shifts: (1) the creation of a new "hotline" that detainees may call "if
they believe they may be U.S. citizens or victims of a crime;" and (2)
the alteration of the detainer so that it may only become effective upon
an alien's conviction of a crime. (DHS Form I-247). (Id.)

The first policy change, the detainee hotline, will be staffed by
ICE's Law Enforcement Support Center (LESC) 24 hours a day, seven days a
week, and will have translation services available in several languages
to accommodate alien callers. (Id.) The LESC is the division
within ICE charged with responding to inquiries from local, state, and
federal law enforcement agencies on aliens suspected, arrested, or
convicted of criminal activity. (See ICE Website,
Dec. 30, 2011) Demonstrating the Obama Administration's pro-amnesty
agenda, ICE placed the LESC in charge of manning the hotline to aid
illegal aliens despite the Administration's arguments in its several
lawsuits challenging state enforcement laws that the LESC's resources
are too limited and would be overburdened if state and local officers
were required to verify the status of those lawfully stopped or
arrested. (See FAIR Legislative Update, Nov. 7, 2011; see also FAIR Legislative Update, Nov. 28, 2011)

The other policy change, the new detainer, also contains revisions
aimed at putting illegal aliens ahead of the American people. In
particular, ICE modified its detainer form to include a new provision
that allows ICE agents to "Consider this request for a detainer
operative only upon the subject's conviction." (DHS Form I-247).
According to the ICE press release making the announcement, the
conviction must also be for the "offense for which he or she was
arrested." Instructing law enforcement to ignore the detainer unless the
alien is convicted of the offense for which they were arrested,
however, completely belies the goal of the detainer — to place into
deportation proceedings illegal and criminal aliens while officials
already have them at the jail house door. (ICE Press Release,
Dec. 29, 2011) Moreover, this shift in policy to a discretionary
"post-conviction" model ignores the fact that being in the country
illegally is a violation of federal law while simultaneously welcoming
criminal aliens back onto the streets since many may post bond and
abscond before ever being convicted or may ultimately be convicted of a
lesser offense.

Alarmingly, the new hotline and detainer form come in response to
accusations made by the open borders lobby that the Secure Communities
program is causing ICE to mistakenly detain U.S. citizens. Earlier this
month the American Civil Liberties Union of Southern California, along
with other pro-amnesty organizations, called on their local government
to cease using Secure Communities due to allegations that four U.S.
citizens were held in California jails on ICE detainers because of it. (ACLU Press Release,
Dec. 14, 2011) An analysis by the Center for Immigration Studies (CIS)
of these cases, however, revealed that the citizens were arrested by
local law enforcement for an underlying criminal offense — not for a
violation of immigration law — and it was only after their fingerprints
triggered a response from the Secure Communities database that ICE asked
local officials to hold them for the additional 48-hour period
permitted under law. (See CIS Website, Dec. 16, 2011) Moreover, ICE never charged nor took into custody these individuals. (Id.)

In spite of these new measures, amnesty advocates claim the
Administration is not going far enough to aid illegal aliens being held
in local jails. Thomas Saenz, president and general counsel of the
Mexican American Legal Defense and Education Fund (MALDEF), called the
new hotline a positive, but "inadequate" step by ICE. (LA Times,
Dec. 29, 2011) "It relies on the individuals being detained to have the
courage, knowledge, and wherewithal to make a call to the hotline and
follow up. They may feel intimidated or unable to adequately navigate
their case," he said. (Id.)

Federal Judge Enjoins South Carolina's Act 69

A week before 2011 came to a close, a federal judge enjoined major
portions of South Carolina's new immigration enforcement law, Act 69. (See South Carolina District Court Order, Dec. 22, 2011) South Carolina passed Act 69 last June in an attempt to fight illegal immigration within the state. (See FAIR Legislative Update, June 27, 2011)
In October, the Department of Justice (DOJ) sued South Carolina to
strike down the major provisions of the law set to go into effect
January 1, 2012 claiming they are preempted by federal law. (See FAIR Legislative Update, Nov. 7, 2011)

In its complaint, the DOJ challenged only four provisions of Act 69: Sections 4, 5, 6, and 15. Section 4
prohibits individuals from transporting or harboring illegal aliens (§
4(B) and (D)) and also prohibits illegal aliens from allowing themselves
to be transported or harbored (§ 4(A) and (C). Section 5 penalizes aliens for failure to carry alien registration documents pursuant to federal law. Section 6(A)
requires law enforcement officers to determine the immigration status
of an individual the officer has lawfully stopped and has reasonable
suspicion that the person is illegally in the United States. Section 6(B) prohibits the possession or display of a false ID for the purpose of establishing lawful presence in the U.S. Finally, Section 15 prohibits individuals from making fraudulent ID documents for illegal aliens. (See South Carolina Act 69. For a detailed summary of the DOJ complaint, see FAIR Legislative Update, Nov. 7, 2011)

In its decision handed down last week, the federal court adopted
virtually all of the DOJ's arguments, blocking the implementation of
Sections 4, 5, and 6, while declining to enjoin Section 15. First, the
Court held that Section 4(B) and (D), which prohibit
the transporting and harboring of illegal aliens, is preempted by the
federal statute that prohibits the same activity, 8 U.S.C. §1324.
Pointing to differences in penalties and exemptions between the state
and federal laws, Gergel described this as a case of implied preemption.
"It is clear to the Court," he wrote, "...that Congress adopted a
scheme of federal regulation regarding the harboring and transporting of
unlawfully present persons so pervasive that it left no room in this
area for the state to supplement it." (Order at 23) While Judge Gergel
acknowledged that federal law expressly gives state and local law
enforcement officers authority to arrest individuals smuggling and
harboring illegal aliens (see 8 U.S.C. §1324(c), he rejected
its application here. Instead, he concluded that Congress did not
intend to allow the states to do any more than simply arrest
individuals. The discretion to prosecute such offenses, he wrote, must
remain in the hands of the federal government. (Order at 23)

Next, the Court held that Section 4(A) and (C),
which prohibit an illegal alien from allowing himself to be transported
or harbored, is preempted by federal law. Gergel agreed with the DOJ's
argument that these paragraphs are tantamount to the criminalization of
unlawful presence, which federal law punishes as a civil, not criminal,
offense. Thus, Judge Gergel found preemption to be implied. (Order at
27) Although South Carolina argued that federal law permits states to
arrest certain illegal aliens (see8 U.S.C. § 1252c),
the Court pointed out that the statute specifically refers to illegal
aliens who have been convicted of a felony. Thus, Gergel argued, this
section goes beyond what Congress contemplated through the passage of 8
U.S.C. § 1252c.

Then, the District Court held that Section 5, which
requires aliens to carry their registration documents pursuant to
federal law, is also impliedly preempted. Judge Gergel noted that
Section 5 closely tracks federal law, but made a point of noting that
prosecutions are rare. Moreover, he argued, there is "little doubt"
that alien registration is a field under the exclusive control of the
government and that the state of South Carolina has "not traditionally
regulated the area of alien registration." Thus, he concluded, "the
national government has adopted a pervasive and comprehensive scheme
that leaves no place for state regulation in this area." (Order at 25)

Like the preceding sections, Judge Gergel also held that Section 6,
which authorizes state and local law enforcement to undertake
immigration status checks, is preempted by federal law. Section 6, he
wrote, is impliedly preempted for three main reasons. First, he
concluded "the federal government's regulation of immigration
enforcement is so pervasive and comprehensive that it has not left any
room for the state to supplant it." (Order at 36) Second, Gergel
concluded that Section 6 would impose too significant a burden on the
federal government's finite resources dedicated to immigration
enforcement. Finally, Gergel concluded that Section 6 "improperly
infringes on the federal government's exclusive control of foreign
affairs."

Through his analysis of Section 6, Gergel ignored several important
arguments. First, an implied preemption analysis must be based on the
intent of Congress not the executive branch (see, e.g., De Canas v. Bica,
424 U.S. 351 (1976)) Second, Congress has passed multiple statutes
authorizing state and local law enforcement officers to enforce U.S.
immigration laws (see, e.g. 8 U.S.C. §1358(g)). Third, the
DOJ's argument regarding a "burden" on resources is immaterial as
federal statute expressly requires ICE to respond to every immigration
inquiry made by state and local law enforcement officers. (See
8 U.S.C. § 1373(c)) In addition, Gergel rejected South Carolina's
argument that its law enforcement officers have the authority to carry
out immigration status checks pursuant to 8 U.S.C. §1358(g)(10). That
provision expressly states that state and local law enforcement officers
do not need a formal agreement with the federal government in order to
cooperatively enforce immigration laws. Judge Gergel, however, concluded
that South Carolina was not "cooperating" as contemplated under the
statute, because the Obama Administration had issued a formal guidance
document stating that "cooperate" under the statute means allowing the
federal government to maintain its enforcement priorities. (Order at 34)

Finally, Judge Gergel also found that Section 15, which prohibits individuals from making fraudulent ID documents for use by illegal aliens, and a similar provision in Section 6(B)
are preempted by federal law. Federal statute, he argued, already
makes it a crime to make counterfeit immigration documents for illegal
aliens and that through this law the state would now be prosecuting
crimes traditionally prosecuted by the federal government. Finally, he
argued that "the state arrest and prosecution of persons with false
identifications could generate tensions with foreign nations and
retaliation against American nationals abroad." (Order at 26)
Interestingly and somewhat mysteriously, despite these findings, the
Court enjoined Section 6(B) but not Section 15. Gergel argued that the
DOJ had not shown it would suffer irreparable damage if Section 15 went
into effect (a showing of irreparable damage being required to obtain a
preliminary injunction).

The ruling in favor of the DOJ was not surprising to those who read
the district court's opinion. In it, Judge Gergel expressed his personal
disapproval of Act 69 both at the beginning and end of his analysis.
Just before ordering the injunctions, he wrote: "The State of South
Carolina is not without options to address its particular concerns with
the federal government's immigration policy...For reasons that are not
clear to the Court, South Carolina elected to forego an effort to
negotiate its own agreement with the federal government [under INA
§287(g)] and instead adopted Act 69. "Perhaps through good faith
negotiations and frank discussion the State of South Carolina and the
federal government can fashion an agreement to address...the concerns of
state officials without unduly burdening federal resources or
disrupting the foreign affairs of the national government." (Order at
2-3, 36)

In issuing a decision at all, the federal district court rejected a
request by Governor Nikki Haley and state Attorney General Alan Wilson
that court allow Act 69 to take effect on January 1, 2012 and to halt
further hearings in the matter until the United States Supreme Court
issues a ruling on Arizona's SB 1070. (SeePress Release,
Dec. 15, 2011) Their joint press release noted: "To say that this case
before the Supreme Court is important to the instant suit would be an
understatement. A ruling by the Supreme Court in Arizona is likely to resolve most or all of the issues in the instant case."

The Pew poll also indicated that 59 percent of Hispanics disapprove
of the way the Obama Administration is handling the deportation of
illegal aliens. (Pew Report at 5) Importantly, however, the Pew poll
included illegal aliens in the survey sample for this question.
Moreover, the poll also revealed that 46 percent of Hispanics believe
the Obama Administration is deporting the same number of or even fewer
illegal aliens than the Bush Administration. (Pew Report at 6) The Pew
Report also did not question why Hispanic voters disapprove (or approve)
of the Obama Administration's deportation policies. For example, the
poll did not ask how Hispanic voters feel about the Obama
Administration's administrative amnesty program, or whether they feel
focusing solely on criminal aliens represents sound immigration policy.

Another issue the Pew poll examined was voter preferences among the
candidates. According to Pew, Hispanic voters prefer President Obama to
Mitt Romney by 68 to 23 percent, and that they also prefer President
Obama to Rick Perry by 69 to 23 percent. (Pew Report at 8) However, the
Pew poll also revealed that more than half of Hispanic voters (56
percent) have given little or no thought to the candidates who may be
running for president in 2012. (Pew Report at 10)